Date: 20210621 Docket: T-601-21 Citation: 2021 FC 643 Ottawa, Ontario, June 21, 2021 PRESENT: The Honourable Mr. Justice Zinn BETWEEN: 2021 FC 643 (CanLII) VERNETTA CAMPEAU Applicant and MUSKOWEKWAN FIRST NATION BAND COUNCIL, REG BELLEROSE, LEON WOLFE JR., CALVIN WOLFE, JAMIE WOLFE, CYNTHIA DESJARLAIS, ERNEST MOISE, HOLLY GEDDES, TERRYOLE WOLFE, KAREN MARIE DESJARLAIS AND THE ATTORNEY GENERAL OF CANADA Respondents ORDER AND REASONS [1] Ms. Campeau is a member of the Muskowekwan First Nation and an eligible voter. She submitted her nomination and was on the ballot as a candidate for Councillor in the election that was to be held on April 4, 2021 [the April 4, 2021 Election]. Page: 2 [2] She seeks judicial review of the March 29, 2021 decision, as amended on April 9, 2021, cancelling the April 4, 2021 Election, and extending Chief and Council's terms in office until at least July 11, 2021. [3] In connection with that application, Ms. Campeau seeks interim injunctive relief “preserving the status quo” of the election process. 2021 FC 643 (CanLII) Background Facts [4] Section 18 of the Muskowekwan First Nation Custom Election Act provides that an election for Chief and Council is to be held every four years: A General Election shall be held on April 2, 2017, and on the first Sunday in April of each election year. The term of Office shall be of four years for the Muskowekwan First Nation Chief and eight (8) Council positions. [5] Pursuant to this provision, and others in the Muskowekwan First Nation Custom Election Act, the election was to be held on Sunday, April 4, 2021, the nomination period was open on March 2, 2021, a list of 5 candidates for Chief and 21 candidates for Council was published on March 5, 2021, and mail-in ballots were sent out, with an unknown number returned to the Electoral Officer, Burke Ratt. [6] In the period leading up to the April 4, 2021 Election, the following significant events occurred: Page: 3 On March 23, 2021, the Government of Saskatchewan issued a Public Health Order relating to the “serious health risk” posed by COVID-19. It put in place restrictions on travel and gathering in the City of Regina and the surrounding area. On March 25, 2021, the Regional Medical Officer of Health for Indigenous Services Canada sent an advisory to community members of the Muskowekwan First Nation, advising that there were 9 confirmed COVID-19 cases, including variants of concern, in 2021 FC 643 (CanLII) the community of Muskowekwan First Nation. It stated that the variants of concern were 30% - 70% more transmissible, and thus it advised that “it’s more important than before to follow the Public Health Order and get tested to protect yourself and those around you.” It recommended that members avoid high-risk activities and places. This letter was placed on the Muskowekwan First Nation Facebook Page. On March 26, 2021, the Muskowekwan First Nation was put into lockdown effective 8:00 pm that day. It was publicized on the Muskowekwan First Nation Facebook Page, and reads as follows: “[I]t is strongly recommended that community members not have visitors or socialize outside their homes … [e]ntry will be restricted to residents and essential staff and services.” On March 27, 2021 at 1:30 pm, a Chief and Council meeting was held at the Sheraton, Saskatoon, Saskatchewan. The minutes of the meeting indicate that the principal item under discussion was the April 4, 2021 Election. Council members were evenly split as Page: 4 to whether to postpone the election for 30 days or 90 days. The Chief cast the tie- breaking vote, postponing the election for 90 days. The Resolution reads as follows: WHEREAS Chief and Council (the "Council") of the Muskowekwan First Nation (the "First Nation") has taken and is taking steps in response to the ongoing health risk posed by the COVID-19 Pandemic in order to protect the First Nation; WHEREAS the First Nation has a Council election scheduled to take place on April 4, 2021 (the "Election") pursuant to the Nation's custom Muskowekwan First Nation Custom Election Act (the "Act"); 2021 FC 643 (CanLII) WHEREAS Council has consulted with Lorne Fagnan of McKercher Law in order to get direction on how or whether to proceed with the election given the ongoing health and safety risk posed by the COVID-19 Pandemic; WHEREAS the Council has determined that the election should be postponed for 90 days, and Council’s terms should be extended accordingly, in order to prevent, mitigate, or control the spread of COVID-19 on the First Nation; WHEREAS the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases), SOR/2020- 84, enable Council to extend the term of office of Council if it is necessary to prevent, mitigate, or control the spread of diseases on the Nation’s reserves, even if the Act does not provide for such a situation; and WHEREAS Council believes it is in the best interests of the Nation to postpone the Election for a period of 90 days and to extend Council’s term accordingly THEREFORE BE IT RESOLVED THAT: 1. the Election is postponed 90 days to July 3, 2021; 2. the terms of Council are extended for a period of 90 days to coincide with the 90 day postponement of the election; and 3. these Resolutions may be executed in counterparts, all executed counterparts will be deemed to be a single instrument, and a facsimile or electronic copy of a signature to this resolution shall be as effective as the originally signed copy. Page: 5 A second meeting of Chief and Council was held on March 29, 2021. It had a single agenda item – whether to cancel or postpone the April 4, 2021 Election. By a vote of 5 to 4, it was decided to cancel the April 4, 2021 Election. The Resolution reads as follows: WHEREAS Chief and Council (the "Council") of the Muskowekwan First Nation (the "First Nation") has taken and is taking steps in response to the ongoing health risk posed by the COVID-19 Pandemic in order to protect the First Nation; AND WHEREAS the First Nation has a Council election scheduled to take place on April 4, 2021 (the "Election") pursuant to the Nation's custom Muskowekwan First Nation Custom 2021 FC 643 (CanLII) Election Act (the "Act"); AND WHEREAS at a meeting of Council, Council has discussed the merits of proceeding with the Election given the ongoing health risks posed by the COVID-19 pandemic; AND WHEREAS Council has decided that the Election should be cancelled and rescheduled, and Council’s terms should be extended accordingly, in order to prevent, mitigate, or control the spread of COVID-19 on the First Nation; AND WHEREAS the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases), SOR/2020- 84, enable Council to extend the term of office of Council if it is necessary to prevent, mitigate, or control the spread of diseases on the First Nation, even if the Act does not provide for such a situation; WHEREAS Council believes it is in the best interests of the First Nation to cancel the Election for a minimum of 90 days. THEREFORE BE IT RESOLVED THAT: 1. the Election is cancelled for a minimum of 90 days from April 4, 2021, with a new election date to be scheduled within 7 days of the expiry of the 90-day period. 2. the terms of Council are extended for a period of 90 days from April 4, 2021; and 3. these Resolutions may be executed in counterparts, all executed counterparts will be deemed to be a single instrument, and a facsimile or electronic copy of a signature to this resolution shall be as effective as the originally signed copy. Page: 6 On April 1, 2021, Council was made aware of this Court’s decision in Bertrand v Acho Dene Koe First Nation, 2021 FC 287 [Bertrand], wherein this Court declared that section 4 of the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases), SOR/2020-84 is ultra vires and invalid, and suspended that declaration for 60 days. On April 8, 2021, Council passed a motion dealing with the timing and other particulars 2021 FC 643 (CanLII) of the replacement election. The motion reads as follows: Muskowekwan Chief & Council will appoint Marilyn Louison for the Electoral Officer for the Muskowekwan First Nation Election 2021. Election is to be held on July 11, 2021 and nomination is held June 8, 2021. Relief Sought [7] Ms. Campeau clarified that she is seeking an Order in the following terms: 1. The decision dated March 29, 2021 to cancel the April 4, 2021 election is suspended pending the outcome of this application for judicial review; 2. The election process commenced on or about March 2, 2021 is resumed effective immediately; 3. A new election date shall be scheduled as soon as possible and no later than the week of July 5, 2021; Page: 7 4. For greater certainty, the Electoral Officer, Burke Ratte, is directed to take all necessary steps to implement this Order in accordance with the Muskowekwan First Nation Custom Election Act; 5. The Court shall remain seized of this matter for 30 days in order to address any issues that arise relating to the implementation of this Order. [8] Because Ms. Campeau in this motion is not seeking any remedy directed to the decision 2021 FC 643 (CanLII) of Chief and Council to extend their terms, I shall not address that aspect of the underlying application.